Loading...
HomeMy WebLinkAbout1995-0069IRESON96_11_19 ONTARIO EMPLOYES DE LA CCURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 32tJ-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSfMfLEfTELECOP'E (41tJ) 32tJ-139tS GSB # 69/95 OPSEU # 95B659 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Ireson) Grievor - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE o V Gray Vice-Chairperson FOR THE G. Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE E. Johnson EMPLOYER Employee Relations Officer Management Board Secretariat HEARING November 8, 1996 DECISION In her grlevance filed December 21, 1993, Nancy Ireson alleges that she has been improperly demed recognition of her part-bme servlce as an unclassl- fied employee from January 1, 1984 to August 1, 1985, when she was appointed to the classified service as a full-time employee. The grIevor began working in the unclasslfied semce on a part-bme basls in January 1982 Apart from one 9 week period when she worked full-time hours on a temporary basls, she regularly worked 6 hours per day on 4 weekdays per week until her appointment to the classified service in August 1985 Thereafter, she asked whether she would get credit for her pnor service. She was told she would not. She dld not question trus further until December 1993, after she at- tended a job security course at which someone told her that she was entitled to credlt for that service under Artlcle 25 of the collective agreement and should gneve. When she then ralsed tl11s with her manager, he told her that the Human Resources Branch had told him her prior service was "deemed to be broken serv- lce" because of the one weekday per week that she did not work while employed part-time. The union relies on Artlcles 25 1 and 25.2 The pertment provlsions of those articles are as follows. ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 251 Effective February 3, 1992, an employee's length of continuous serv ice will accumulate upon completIOn of a probationary period of not more than nme (9) months and shall commence. (a) from the date of appomtment to the Classified Service for those employees with no prior service in the Ontario Public Service, or (b) effective January 1, 1992, from the date estabhshed by addmg the actual number of full-time weeks worked by a full tune un classified employee durmg his full.time employment back to the fIrst break m employment which is greater than thirteen (13) weeks, or (c) for a regular part-time civil servant, from January 1, 1984 or from the date on which he commenced a penod of unbroken, part-tune employment in the pubhc service, immediately pIlor to appointment to a regular part-time pOSition in the Civil service, whichever is later; or (d) effective January 1, 1984, from the date estabhshed by addmg the actual number of full-time weeks worked by a full tune sea .2 . / sonal employee during his full tune employment back to the fIrst break in employment whIch is greater than thirteen (13) weeks. "Unbroken service" IS that whIch IS not mterrupted by separation from the public service, "full-time" is contmuous employment as set out in the hours of work schedules for the appropriate classifications; and "part-time" is continuous employment in accordance with the hours of work specified in Article 61.1. 25.2 Notwithstanding Article 25.1, where a regular part-tune cIvil servant within the meaning of Part C of the Collective Agreement becomes a full-time civil servant covered by Parts A (yV orking ConchtIons) and B (Employee BenefIts) of the Agreement, any service as a regular part time civil servant which forms part of hIS unbroken servIce in the classified service shall be calculated according to the following formula. Weekly Hours of Work as a Years of Continuous Re~lar Part. time Civil Servant X Service as a Part. time Full-time hours of work CIvil Servant for class (weekly) A "regular part.time civil servant" is someone appomted to the classified servlce who works less than full-time hours. Provisions with respect to regular part-time civil servants were first mtroduced into the parties' collectlve agree. ment as a result of an arbitration award dated May 23, 1985, wInch settled the provisions of the parties' collective agreement for the period January 1, 1984 to December 31, 1995 That collective agreement provided that the effectlve date for Article 25 l(c), Article 252 and Part C of the agreement was January 1, 1996 The umon argued that once proviSIons with respect to regular part.time CIvil servants came IOto effect in 1986, the employer was obliged to review the employment histories of its employees and apply them so as to gIve credit for prior part-time unclassified employment, particularly part.bme unclassified em. ployment of a regular nature. It saId that the combIOed effect of Article 25 l(c) and Article 25.2 is that the gnevor ought to have been gIven pro-rata full tIme credIt for her part.tIme servIce from January 1, 1994 to July 31, 1995 Virtually the same Issue arose (in a more tImely way) in Ball, 1657/87 (Roberts) There, the grievor had been appointed to a full.tIme pOSItIOn in the claSSIfied service on May 1, 1985, after havIOg been a part-time employee in the unclassified servIce for a number of years. The gnevance complained that the - 3 - ./ employer had refused to recognize under Article 25 any seniority in the grievor pnor to May, 1985 The decisIOn noted that At the hearmg the parties agreed that if the grievor had become a mem ber of the regular part-time service beCore going Cull-time, she would have received some recognition of her senionty Under ArtIcle 25.1(c), above, it was agreed, the grievor would have kept all her seniority back to January 1, 1984 m movmg from the unclassified to the regular (or classified) part time civil seIVice. Under Article 25.2, above, the parties also agreed, semority would have been retamed an a pro-rated basis when the grievor became a full tune CIvil servant. It was only because the grievor did not have the opportunity of taking the intermediate step of becoming a classified part-timer that she was denied recogmtion of any semority at all. This seemingly anomalous result, counsel for the Umon submitted, came about because the mterest arbitration award which established for the fIrst time a classified-part-tune civil seIVice assumed mcorrectly that thereafter, all "regular" part tuners would become classllied. As a result, Article 25 did not provIde for the preseIVatIon of seniority of unclassllied regular part-tune employees who entered the full-time classified seIVIce. Because of thIS mIS- take, it was submitted, it was appropriate for this Board to gIve the gnevor the benefit of Article 25.1 and 25.2 despIte the fact that she never was a member of the classified regular part time seIVice. The board was not convInced that the mterest arbItratIon board had assumed that all regularly employed part-timers would thereafter become classified em ployees. Without suggesting that the result might have been different if it had been so convinced, it concluded that The grIevor cannot take advantage of the provisions of either Article 25 l(c) or 25.2 to claim a seniOrity date earlier than her date of commencement of employment m the full-time classrlied servIce because she was not a member of the classllied part-tune staff unmedIately prior to her part-time appoint ment. In light of this conclusion, we have no alternative but to dISmISS her grievance. The board went on to acknowledge the apparent ineqUIty and, acceptmg that this mIght have been an overslght, urged the partIes to address it: Before concluding our award, however, we would like to express our strong recommendation to the parties that they meet to consider and resolve the phght of employees m the pOSItIon of the grIevor It does seem anomalous and inequitable that the grievor should be deprived of seniority credits merely because she accepted a full trme appomtment WIthout fIrst becoming a member of the classIfied part-time staff. It seems likely, as counsel for the MmIstry suggested, that the parties simply did not turn theIr mmds to the question of the seniority of unclassrlied part trmers who obtained direct ap- pointments to the full-tIme classified servIce. - 4 - , The relevant provisIons of ArtIcles 25 1 and 25 2 have remamed the same in all subsequent collective agreements. They still do not provide for credit for prior service the case of someone who moves directly from part-time unclassified employment to full.time classified employment. The central issue here arose again in Beard, 3019/92 (Devlin), where the grievor had been appointed to a part-time position in the unclaSSIfied service m JUne 1989 and then to a full-tIme position in the claSSIfied servIce 10 April 1990 There, the arbItrator made these observations. Both parties acknowledge that the Grlevor does not fit squarely wIthm any of the subparagraphs of Article 25.1 In this regard, she is not an em ployee with no prior service as provided in subparagraph (a) Moreover, al- though subparagraphs (b) and (c) provide credit for prIor service, in the Grievor's case, her prior service was not on a full-time basis so as to entitle her to credit under subparagraph (b), nor was she appointed to a part-tune position in the classified servIce so as to entItle her to credit for prIor part- time servIce under subparagraph (c) There IS not doubt that Article 25.1 creates certain mequIties Neverthe- less, the language of the Article is clear and unambiguous and does not enti- tle the GrIevor to credit for prior part-time service as a member of the un classified staff for purposes of calculating her continuous servIce date. Moreover, although there was some suggestIOn by the Umon that the Grievor ought to have been appointed to the classified service on part-time baSIS prior to April 9, 1990, It was agreed that she was properly appomted to the unclassIfied service ill June of 1989 There is no basis upon whIch I could conclude that her continuing appomtment to the unclassIfied servIce in the mtervenmg perIod was unproper At one point in the unIon's argument here, there was a suggestion that the provisIOns added to the 1984.85 collective agreement with respect to regular part-time CIvil servants had obhged the employer to appo1Ot any unclassified employee performing part-time work on a regular basis to a regular part-tIme classified pOSItion, and that thIS entitled the gnevor to be treated as though she had been appointed to the classified service as a regular part-tIme CIvil servant before her actual appomtment to the classified service as a full-time time em- ployee 10 August 1985 The umon acknowledged that the proviSIOns 10 questIon could not have had that effect before their effectIve date, however, and the ar- gument was not pursued when It was noted that by the terms of the 1984.85 agreement those prOVISIons came 1Oto effect as of January 1, 1986, whIch was af- ter the grIevor had already been appomted to the full-tIme CIVIl servIce. 5- ;" The union noted that the decisions m Ball and Beard recognized the ineq- uity created by the apparent failure of Articles 25 l(c) and 25.2 to provIde for seI'Vlce credit in the case of someone who moves directly from part.tIme unclassI- fied employment to full-time classIfied employment, when those Articles do pro- Vide service credit for those who move from full-tIme unclassIfied to full-tIme classified, or from part.time classIfied to full-time classIfied or from part-tIme unclassIfied to part-tIme classIfied. It submitted that as the partIes had not re- paired the inequity, the Board should now do so by awarding the grievor senior- ity credit on the baSIS that her circumstances are analogous to those in whIch Ar- ticle 25 1(c) and 25.2 would have gIven such a credit. I fully understand why the grIevor was and IS concerned about the lack of credIt for her prior part-tIme servIce Her own sense of the justness of her claIm was no doubt fueled in 1993 by the nonsensical explanation that her prior part- tIme service as an unclassIfied employee was not "continuous" because she had only been scheduled to work 4 days per week in that period. The Issue here is not whether that explanatIOn was correct, however- it is whether the employer's fail. ure to give the grIevor credIt for her prior service was in accordance with the provisions of the relevant collective agreement. The function of the Grievance Settlement Board IS to resolve disputes concernmg the interpretation, apphca tIon, administration or alleged contravention of the relevant collective agree- ment. That collective agreement specifically provides that in doing so liThe Grievance Settlement Board shall have no jurisdIction to alter, change, amend or enlarge any provislOn of the Collective Agreement" (ArtIcle 27 16) I have no JU risdiction to repair the apparent inequity by reading into the agreement some- thing that plainly is not there However inequitable it may seem, the language of Article 25 very clearly prOVIdes that an appointee to the full.tIme claSSIfied servIce wIll only get credit for prior service in unclassified employment In certain circumstances. It did not and does not provide for a credit in the grIevor's CIrcumstances. The grIevance must therefore be dismissed. Dated at Toronto thIS 19th day of November, 1996 ay~&h Owen V Gray, Vice'c~